If a state inspector finds that your facility is in violation of the Clean Air Act (CAA), must the state then report that violation to the U.S. Environmental Protection Agency (EPA), along with any enforcement action the state takes and subsequent actions you undertake to return to compliance?

In general, the answer is yes, and from the perspective of the facility owner/operator, the implications are important. Moreover, the EPA has noted that states have been somewhat lax in reporting CAA violations. While the Agency gives states a small amount of latitude in how they prioritize reporting, the general expectation at EPA’s end is that all emissions-related violations must be reported. 

Public Information

This transfer of information is more than a paper exercise. The EPA stores reports about CAA violations in its Air Facility System (AFS), a database of compliance and permit data for stationary sources regulated by the EPA, state, and local air pollution agencies. The EPA says that the AFS is an important tool state agencies use to track compliance, but the EPA also relies on the data to provide the public with the latest state and federal compliance monitoring and enforcement activities.  In other words, if your facility was not previously listed in the AFS, the newly reported information gives both the public and the EPA a new avenue—and a new reason—to monitor not only developments associated with the violation but also any other regulated activity that interests them.

State Reporting Lapses

State reporting of CAA federally reportable violations (FRVs) became a subject of discussion several years ago when the EPA found that a “significant percentage” of violations of federal enforceable CAA requirements and implementing regulations were not being reported by states to the EPA in a consistent or accurate manner. In fact, the EPA had published guidance and policy documents and information collection requests in 1986, 1998, 2005, and 2008 defining high-priority violations (HPVs) and minimum data requirements (MDRs) to assist states in reporting CAA violations. When issues concerning state reporting subsequently came to light, the EPA produced a clarification memo in March 2010.

Prioritizing Reports

The main point in the 2010 memo is that states “should” report both HPVs and other violations of federally enforceable requirements to the AFS. At the same time, the memo recognizes that states have limited resources to commit to reporting. Hence, the memo adds yet two more terms—Tier I FRVs and Tier II FRVs. Both tiers should be reported, but the EPA writes that it expects state and local air agencies to first focus on complete, timely, and accurate reporting of Tier I violations and enforcement actions, which the Agency says comports with its “highest national need.”

Current reporting requirements direct agencies to report data within 60 days following the date the violation commenced.

Here’s How the Agency Defines Tier I and Tier II FRVs

Tier I

Tier I FRVs are any emissions violation or significant procedural violation (see definition below) continuing or likely to continue based on any credible evidence for at least 7 days of a federally enforceable requirement at any source that is:

  • A major source
  • A synthetic minor source
  • Listed in a compliance monitoring plan
  • A Part 61 National Emissions Standard for Hazardous Air Pollutants (NESHAP) minor source (Asbestos NESHAP demolition and renovation violations are not reportable.)
  • An active HPV

Tier II

Tier II FRVs are any emissions or significant procedural violation (see definition below) continuing or likely to continue based on any credible evidence for at least 7 days of a federally enforceable requirement at any source not covered by Tier I, which is subject to a formal enforcement action (Violations of open burning, nuisance violations, and violations of asbestos demolition and renovation requirements are not reportable.)

The 7-day minimum requirement does not apply to violations at NESHAP Part 61 minor sources or to HPVs.

Significant Procedural Violation

A significant procedural violation includes:

  • For New Source Performance Standard (NSPS) and NESHAP sources, activities such as failure to install a continuous emissions monitoring system (CEMS) or other monitoring equipment, failure to conduct timely performance tests, and failure to conduct appropriate monitoring and associated recordkeeping
  • For state implementation plan (SIP) sources, activities such as failure to install a CEMS or failure to obtain a required New Source Review (NSR) permit
  • For Title V sources, failure to apply for a Title V permit or failure to submit annual compliance certification reports
  • For a state consent decree, court order, or administrative order, failure by the source to accomplish or maintain interim emissions reductions or achieve interim increments of progress, which jeopardize the ability of the source to meet the final compliance dates

For more information or assistance with your Environmental and Health & Safety regulatory compliance needs, contact Ralph Carito at Total Environmental & safety, LLC (Total) at rcarito@TotalEnviron.com or 908-442-8599.